– M. Paz Avila Ordoñez*
By mapping out the intellectual scenery of constitutional amendment rules, Constitutional Amendments: Making, Breaking, and Changing Constitutions offers a remarkable theoretical, doctrinal, and comparative study of the most pressing questions on constitutional change. As Richard Albert claims, virtually all codified constitutions specify procedures for amendment. Nevertheless, there has been limited scholarly attention to this inquiry. Drawing from a wide-reaching sample of cases, this work brings back the analysis of constitutional amendment rules to the center stage of the study of constitutional change.
One of the most significant contributions of this seminal work relates to the theory of constitutional dismemberment. By refusing to settle with the postulates of conventional constitutional theory and its binary approaches to constitutional amendments, Richard Albert argues that constitutional dismemberments set a middle ground between an amendment and constitutional replacement. Constitutional dismemberments are often implemented using the amendment rules, but they entail a transformation in one or more of the core constitutional commitments. As Richard Albert argues, ‘a constitutional dismemberment transforms the constitutional order without breaking legal continuity’.
In this regard, constitutional dismemberments have a much broader scope than constitutional amendments. While a constitutional amendment keeps the altered constitution in harmony with its essential features, a constitutional dismemberment incorporates fundamental and incompatible transformations with its pre-existing rights, structure, and identity. One question that remains unanswered is the extent to which the constituted power has the authority to transform the core commitments of the constitutional framework.
Richard Albert also argues that constitutional dismemberments ‘do violence to the existing constitutions, whether by remaking the constitution’s identity, repealing or reworking a fundamental right, or destroying and rebuilding a central pillar of the constitution’. Although the notion of constitutional dismemberment constitutes a significant contribution to the conventional distinctions of constitutional change, it is unclear to what extent the term ‘dismemberment’ can also capture the reconstruction, remaking, or reworking of a dismembered constitutional framework. Constitutional dismemberments entail a mutilation of the existing constitution either by repealing or transforming a core constitutional feature. In this sense, it is unclear whether the same term is able to capture the ‘remaking’ of the same incomplete body without transforming it into a new one. Furthermore, while it is clear that there is a substantive distinction between constitutional amendment and constitutional dismemberments, I wonder whether the distinctions between constitutional dismemberment and replacement still rests on the formal use of amendment rules and the benefits of legal continuity.
Richard Albert develops three varieties of constitutional dismemberments: The first variety displaces a fundamental right protected by the constitutional framework. A useful example is the ‘Christian Amendment’, proposed in the United States during the nineteenth century. Had the amendment passed, it would have created a profound departure from the values expressed in the Establishment Clause, which prohibits Congress from passing a law establishing an official religion in the nation. The second variety of dismemberments are those that displace a constitutional right central to the political community. One example developed by the author was the Charter of Fundamental Rights and Freedoms adopted as an amendment to the Jamaican Constitution in 2011. This amendment repealed the original constitutional chapter on Rights and Freedoms with provisions that diluted previously existing protections. The third type establishes a clear break in the way a constitution regulates the exercise of power. These types of dismemberments are ubiquitous around the world. In the last decade, countries such as Russia, China, and many others in Latin America have passed so-called amendments extending and, in some cases, eliminating the presidential term-limits. These examples should further motivate scholars and constitutional designers to consider the differences between amendments and dismemberments. As Richard Albert shows throughout his work, it is insufficient to require the same treatment and thresholds for minor and major changes to the constitution.
In this book, Richard Albert also explores the studies on amendment difficulty. Constitutional scholars have measured the worldwide rankings of constitutional difficulty for a long time. Richard Albert challenges the reliability of these empirical studies and argues that existing rankings of amendment difficulty ignore informal and non-textual mechanisms of constitutional reform. He argues that not every change to the constitutions is done using the formal amendment mechanisms. Therefore, he contends that studies of flexibility and rigidity lack informal mechanisms that incorporate additional variables of rigidity and flexibility. Here, an important factor considered by the author is the amendment culture. Richard Albert suggests that the prevailing constitutional culture might serve as a mechanism that exacerbates, redirects, or incapacitates potential ambitions change. While I agree with Richard Albert that it is not worth it to measure and rank amendment difficulty, I believe quantitative analyses might be able to quantify the frequency of constitutional change as a variable that might explain certain cultural and political tendencies of change. This is not to deny that rankings of amendment difficulty create skewed ideals of constitutional rigidity that tend to glorify the status quo.
As an extension of the theme of amendment difficulty, Richard Albert shows how constitutions sometimes designate certain provisions as resistant to all forms of alteration. In this study, Richard Albert identifies three varieties of constitutional unamendability. While codified unamendability emerges from the constitutional framework, interpretative unamendability emerges from judicial decisions or the dialogical exchanges between political actors. The Supreme Court of India developed the basis for the interpretative unamendability in a series of important judgements considering the Basic Structure Doctrine, which has traveled to many other countries since it was articulated a half-century ago.
Building upon informal mechanisms of amendability, the author identifies the third variety of unamendability. Constructive unamendability is the practical impossibility of reaching the thresholds established to amend the constitution even though there are no specific requirements that prevent formal constitutional change. As Richard Albert suggests, constructive unamendability is ‘the product of constitutional politics requiring reformers to perform impossible heroics to successfully amend the constitution’. It is often the result of extremely onerous requirements to amend the constitution or the product of informal and structural practices that create a greater public attachment to the constitution and discourage any attempt to amend it. In this sense, Richard Albert acknowledges that political practices and informal rules might impose significant obstacles for constitutional amendment procedures that seem to be formally possible, but virtually impossible in practice.
Richard Albert renders a comprehensive study comparing the advantages and disadvantages of different amendment rules, from single and multi-track pathways to single-subject amendment and more elaborated structures that incorporate higher thresholds for constitutional dismemberments. This is an extraordinary resource for constitutional designers who are assessing the suitability of certain elements within their constitutional frameworks. The author briefly incorporates a debate about the undemocratic character of unamendability rules and the reasons why constitutional drafters might choose to incorporate them or not.
One of the final questions explored in this study is how constitutional amendments are incorporated into the constitutional framework. Richard Albert uncovers four models of amendment codification: the appendative model adopted by the U.S. Constitution, the integrative model adopted in India, the invisible model in the Irish Constitution, and the disaggregated model of the British Constitution. Each of these models reflects a different constitutional culture depending on the level of visibility that each jurisdiction gives to the evolving constitutional framework. Initially, this might appear as an irrelevant factor for constitutional designers. Nevertheless, as Richard Albert argues, how constitutions record its amendments is ‘ultimately a choice about how and indeed whether a people chose to remember its past’.
One particularly interesting feature of this book is the far-reaching collection of cases used to illustrate the different constitutional amendment practices around the world. There is a heavier reliance on the experiences of the United States and Canada, which might respond to the author’s close familiarity with those countries’ practices. Nevertheless, this work constitutes a valuable contribution that raises a multifaceted research agenda for years to come.
As Richard Albert argues, ‘no part of a constitution is more important than its rules of change’. Constitutional amendment rules can either enhance or weaken the core values and constitutional commitments of the polity. Constitutional Amendments: Making, Breaking, and Changing Constitutions is an extremely relevant and timely resource for constitutional designers and a significant contribution for scholars interested in understanding practices and methodologies used to design and change a constitutional framework.
* M. Paz Avila Ordoñez is a Ph.D. (c) in Government at the University of Texas at Austin. She holds a master’s degree in Legal Theory from New York University, an LL.M. in Constitutional Law and an LL.B. from universities in her home country Ecuador. Paz worked as a clerk at the Constitutional Court of Ecuador, held a position as a visiting professional at the Inter-American Court of Human Rights in Costa Rica, and as a visiting scholar at Boston College Law School.